Employer’s March to Overturn the NLRB’s Joint-Employer Rule Leads To More Madness

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Employer’s March to Overturn the NLRB’s Joint-Employer Rule Leads To More Madness

 By: Gregory Blueford

Last week, a United States Appeals Court heard oral arguments regarding the National Labor Relations Board’s (“NLRB”) expanded definition of joint employer in the Browning-Ferris case. In that case, the NLRB expanded its previous standard, which required “direct and immediate control” over terms and conditions of employment to be considered a joint employer, to a more lax rule of “indirect control.” You can read more about the NLRB’s joint employer rule here and here.

During oral argument, the judges grilled the attorneys for the NLRB, even stating that they “dropped the ball” with its joint employer ruling as the NLRB failed to clearly state how much weight it would give to the “indirect control” standard, and failed to provide a clear definition of what “indirect control” actually means. In fact, the Court provided multiple hypothetical scenarios to the NLRB and asked whether the employer would be a joint employer in each instance. For example, Judge Raymond Randolph asked if a hotel owner would become a joint employer with a landscaping company that maintained the hotel grounds if the hotel owner told the landscapers to stop cutting the grass short. The NLRB responded, stating that it is “important to look at what an intermediary [like the landscaper] is being used for,” suggesting that performing core functions of the business rather than niche jobs will be a determining factor.


A decision from the Court is not expected for several months. Regardless of the outcome, it is very possible (and likely) that the case will be appealed to the United States Supreme Court. In the meantime, employers will have to worry about potential joint employer liability if they control even a small part of a third party’s terms and conditions of employment. We will provide updates to the joint employer rule and other relevant rulings as they become available. Contact The Saqui Law Group if you have questions about how this case can affect your business.


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